John Faure v. Michael J. Astrue, No. 5:2011cv01566 - Document 14 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION and ORDER by Magistrate Judge Marc L. Goldman. The decision of the Social Security Commissioner is REVERSED and REMANDED for further proceedings consistent with this opinion.DATED: April 16, 2012 (db)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 JOHN FAURE, 13 Plaintiff, 14 v. 15 MICHAEL J. ASTRUE, Commissioner of Social Security, 16 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 11-1566-MLG MEMORANDUM OPINION AND ORDER 19 20 Plaintiff John Faure seeks judicial review of the Commissioner s 21 denial of his application for Supplemental Security Income ( SSI ) 22 benefits under the Social Security Act. For the reasons stated below, 23 the decision of the Commissioner is REVERSED and the matter is REMANDED 24 for further proceedings consistent with this opinion. 25 26 I. Factual and Procedural History 27 Plaintiff was born on January 27, 1964. (Administrative Record 28 ( AR ) at 48.) He graduated from high school and completed two years of 1 college. (AR at 137.) Plaintiff has work experience as a baker, molder 2 operator and sponge maker. (AR at 133.) 3 Plaintiff filed an application for benefits on May 6, 2008, 4 alleging disability since April 19, 2006, due to disorders of the 5 muscle, ligament and fascia. (AR at 14, 48.) Plaintiff s application was 6 denied initially on July 28, 2008 and upon reconsideration on October 7 16, 2008. (AR at 50-53, 57-61.) An administrative hearing was held on 8 December 9, 2009, before Administrative Law Judge ( ALJ ) F. Keith 9 Varni, at which Plaintiff, represented by counsel, testified. (AR at 33- 10 47.) 11 On January 13, 2010, ALJ Varni denied Plaintiff s application for 12 benefits. (AR at 14-26.) The ALJ found that Plaintiff had not engaged in 13 substantial gainful activity since the alleged onset dat. (AR at 16.) 14 The ALJ further found that the medical evidence established that 15 Plaintiff suffered from a severe impairment of the musculoskeletal 16 system. (Id.) However, the ALJ concluded that Plaintiff s impairments 17 did not meet, or were not medically equal to, one of the impairments 18 listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR at 18.) The 19 ALJ concluded that Plaintiff retained the residual functional capacity 20 ( RFC ) to perform a full range of light work with the following 21 limitations: The claimant may perform occasional postural activities, 22 but is precluded from climbing ladders, ropes or scaffolds and working 23 on uneven terrain. The claimant is limited to frequent reaching with the 24 left upper extremity. (AR at 18-19.) 25 The ALJ found that Plaintiff was unable to perform his past 26 relevant work as a bakery worker. (AR at 25.) However, relying on the 27 Medical-Vocational Guidelines (the grids ), the ALJ found that there 28 were jobs that exist in significant numbers in the national economy that 2 1 Plaintiff could perform (20 C.F.R. 404.1569, 404.1569(a)). (Id.) The ALJ 2 concluded that Plaintiff was therefore not disabled within the meaning 3 of the Social Security Act. (AR at 26.) 4 On July 29, 2011, the Appeals Council denied review (AR at 1-3), 5 and Plaintiff timely commenced this action for judicial review. On April 6 6, 2012, the parties filed a Joint Stipulation ( Joint Stip. ) of 7 disputed facts and issues. Plaintiff contends that the ALJ erred by: (1) 8 improperly 9 significant number of jobs in the national economy that Plaintiff could 10 perform, and (2) failing to properly consider Plaintiff s subjective 11 pain testimony. (Joint Stip. at 2.) Plaintiff asks the Court to reverse 12 the decision and order an award of benefits, or in the alternative, 13 remand for further administrative proceedings. (Joint Stip. at 16.) The 14 Commissioner requests that the ALJ s decision be affirmed. (Id.) relying on the grids in concluding that there were a 15 After reviewing the parties respective contentions and the record 16 as a whole, the Court finds Plaintiff s contention regarding the ALJ s 17 error in relying on the medical-vocational to be meritorious and remands 18 this matter for further proceedings consistent with this opinion.1 19 20 II. Standard of Review 21 Under 42 U.S.C. § 405(g), a district court may review the Social 22 Security Commissioner s decision to deny benefits. The Court must uphold 23 the Social Security Administration s disability determination unless it 24 is not supported by substantial evidence or is based on legal error. 25 26 27 28 1 The Court will only address the ALJ s reliance on the grids in detail. However, as noted above, Plaintiff also contends that the ALJ failed to make proper credibility findings. Because the ALJ erred by improperly relying on the grids, the Court does not reach this issue and will not decide whether it would independently warrant relief. 3 1 Ryan v. Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)(citing 2 Stout v. Comm r of Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 3 2006)). Substantial evidence means more than a scintilla, but less than 4 a preponderance; it is evidence that a reasonable person might accept 5 as adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 6 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 466 F.3d 7 880, 882 (9th Cir. 2006)). To determine whether substantial evidence 8 supports a finding, the reviewing court must review the administrative 9 record as a whole, weighing both the evidence that supports and the 10 evidence that detracts from the Commissioner s conclusion. Reddick v. 11 Chater, 157 F.3d 715, 720 (9th Cir. 1996). If the evidence can support 12 either affirming or reversing the ALJ s conclusion, the reviewing court 13 may not substitute [its] judgment for that of the ALJ. Robbins, 466 14 F.3d at 882. 15 16 III. Discussion 17 Plaintiff contends that the ALJ erred by neglecting to obtain 18 vocational expert testimony on the issue of whether there existed work 19 in 20 limitations, 21 guidelines. (Joint Stip. at 3.) The Court agrees. 22 the national Once a and economy that instead relying claimant has Plaintiff solely demonstrated could on the the perform given his medical-vocational existence of a severe 23 impairment that precludes him from doing past work, the burden shifts to 24 the Commissioner to demonstrate that there are a significant number of 25 jobs in the national economy that the claimant can perform despite his 26 impairment. Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988). The 27 Commissioner may satisfy this burden by: (1) taking the testimony of a 28 vocational expert or (2) applying the grids at 20 C.F.R., Part 404, 4 1 Subpart P, Appendix 2. Id. 2 The grids provide a system for disposing of cases that involve 3 substantially uniform levels of impairment. Desrosiers v. Sec y of 4 Health & Human Servs., 846 F.2d 573, 578 (9th Cir. 1988) (Pregerson, J., 5 concurring). The grids categorize jobs by three physical-exertional 6 requirements: [m]aximum sustained work capacity limited to sedentary 7 work, [m]aximum sustained work capacity limited to light work, and 8 [m]aximum sustained work capacity limited to medium work. Tackett v. 9 Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). These exertional levels are 10 further divided by a claimant s age, education, and work experience. Id. 11 The grids direct a finding of disabled or not disabled depending on 12 a claimaint s particular combination of factors. Id. 13 There are strict limits on when the Secretary may rely on the 14 Guidelines. Desrosiers, 846 F.2d at 578 (Pregerson, J., concurring). An 15 ALJ may only substitute the grids for vocational expert testimony when 16 they completely and accurately represent a claimant s limitations. 17 Tackett, 180 F.3d at 1101 (emphasis in original); see also Holohan v. 18 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). This means that a 19 claimant must be able to perform the full range of jobs in a given 20 [exertional] category for the grids to apply. Tackett, 180 F.2d at 1101 21 (emphasis in original); see also Burkhart, 856 F.2d at 1340. Because 22 the grids are predicated on a claimant suffering from an impairment 23 which 24 requirements 25 claimant s non-exertional limitations. Lounsberry v. Barnhart, 468 F.3d 26 1111, 1115 (9th Cir. 2006). The mere allegation of a nonexertional 27 limitation, however, does not preclude the use of the grids. For the 28 grids manifests to be of itself jobs[,] by limitations they inadequate, may the not be in fully nonexertional 5 meeting the strength applicable limitation for must a be 1 sufficiently severe so as to significantly limit the range of work 2 permitted by the claimant s exertional limitations. Hoopai v. Astrue, 3 499 F.3d 1071, 1075 (9th Cir. 2007) (quoting Burkhart, 856 F.2d at 4 1340); 5 nonexertional limitations are in themselves enough to limit his range of 6 work, the grids do not apply, and the testimony of a vocational expert 7 is required to identify specific jobs within the claimant s abilities. 8 Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988). see also Desrosiers, 846 F.2d at 577. When a claimant s 9 In the present case, the ALJ concluded that Plaintiff retained the 10 RFC to perform a full range of light work with the limitation to 11 frequent reaching with the left upper extremity. (AR at 19.) Difficulty 12 in reaching is considered a nonexertional limitation. 20 C.F.R. § 13 416.969a(c). Instead of taking vocational expert testimony, the ALJ 14 merely stated that the additional limitation on reaching with the left 15 upper extremity has little or no effect on the occupational base of 16 unskilled light work. (AR at 25.) However, contrary to the ALJ s 17 assertion, reaching is required in almost all jobs, at all exertional 18 levels and significant limitations on reaching may eliminate a large 19 number of occupations a person could otherwise do. SSR 85-15, 1985 WL 20 56857 at *7. Moreover, varying degrees of limitations [in reaching] 21 would have different effects, and the assistance of a vocational 22 specialist may be needed to determine the effects of the limitations. 23 (Id.) 24 It appears that the grids do not completely and accurately 25 describe Plaintiff s nonexertional limitation on reaching, and therefore 26 it was improper for the ALJ to rely on the grids at step five rather 27 than taking vocational expert testimony. See, e.g., Tackett, 180 F.3d at 28 1103-04 (vocational expert testimony necessary because claimant s need 6 1 to shift, stand up, or walk around every thirty minutes is significant 2 nonexertional limitation not contemplated by grids); Burkhart, 856 F.2d 3 at 1341 & n.4 (grids inapplicable because they did not account for the 4 claimaint s need to avoid stressful environments, his inability to 5 regularly use his hands, or his vision problems). 6 The ALJ did not specifically identify any jobs that Plaintiff was 7 capable of performing given his nonexertional limitation. This was 8 insufficient to meet the Commissioner s burden at step five. The ALJ 9 should have had a vocational expert testify as to whether there were 10 jobs in the national economy that Plaintiff could perform despite his 11 specific nonexertional limitation. Accordingly, the matter shall be 12 remanded for that purpose. 13 14 IV. Conclusion 15 For the reasons stated above, the decision of the Social Security 16 Commissioner is REVERSED and REMANDED for further proceedings consistent 17 with this opinion. 18 19 DATED: April 16, 2012 20 21 22 23 ____________________________ MARC L. GOLDMAN United States Magistrate Judge 24 25 26 27 28 7
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